Olave v. Am. Family Mut. Ins. Co.
| Docket Number | Civil Action 21-cv-02908-CMA-MDB |
| Decision Date | 01 May 2023 |
| Parties | PERLA OLAVE, and JAMIE DARCI OLAVE-HERNANDEZ, Plaintiffs, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, S.I., Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER GRANTING IN PART AND RESERVING RULING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND ORDERING SUPPLEMENTAL BRIEFING
This matter is before the Court on Defendant American Family Mutual Insurance Company, S.I.'s (“American Family”) Motion for Summary Judgment. (Doc. # 55.) For the following reasons, the Court grants in part and denies in part the Motion.
The following material facts are undisputed. (Doc. # 55 at 3-11; Doc. # 59 at 3-4.)[1]This is an insurance coverage case. Plaintiff Perla Olave is the sole owner of a home located on Garfield Street in Thornton, Colorado (the “Property.”) (Doc. # 5 at ¶ 7.) On December 19, 2016, Ms. Olave applied for a Homeowner's Policy (the “Policy”) with American Family. (Doc. # 55-1 at 68-76.) In her application, Ms. Olave indicated that she and her child would be the only occupants of the Property, it was her primary residence, and the property would be owner occupied. (Id. at 68-70.) The Policy contains the following notice requirement:
(Id. at 44.) The Policy includes the following definition of “uninhabited”:
(Id. at 33.) Finally, the General Conditions Section of the Policy states:
(Id. at 54.) The Policy was issued on December 29, 2016. (Id. at 76.)
Ms. Olave worked in Colorado for a collections business called Alliance until October 2017. (Id. at 104-07.) Ms. Olave moved to Missouri the following month. (Id. at 107.) In January 2018, Ms. Olave registered her own business with the Missouri Secretary of State and enrolled her daughter in school in Missouri. (Id. at 161, 170.) Between November 2017 and March 2018, “nobody was residing at the [Property,]” although Ms. Olave stated that she “would go back and forth just to check on the [Property].” (Id. at 108-10; 120-21.) Ms. Olave did not inform American Family of any changes in the status of the Property during this time. (Id. at 97-98.)
In March 2018, Plaintiff Jaime Darci Olave-Hernandez, Ms. Olave's brother, moved into the Property. (Id. at 118.) Later that year, Ms. Olave was featured in a blog post in which the author noted her “move to the St. Louis[, Missouri,] area was influenced by her commitment to ensur[ing] that her daughter grew up around extended family.” (Id. at 184.) In September 2019, Ms. Olave registered to vote in Missouri. (Id. at 176.)
The Policy came up for renewal in December 2019. (Id. at 13-15.) At this time, Ms. Olave changed her mailing address to an address in Missouri. (Doc. # 5 at ¶ 20.) She also indicated that (Doc. # 55-1 at 81-82, 93, 96-97.) These were the only changes she mentioned to American Family at this time. (Id. at 81-82.) An agent mentioned a businessowner's policy to Ms. Olave, but no changes were made to the type of policy covering the Property. (Id. at 82, 86-87.) According to the agent, this was because Ms. Olave “kept saying, you know, I'm just using this address in Missouri for work now and the home in Colorado is my primary residence.” (Id. at 87.) However, Ms. Olave did not “travel back and forth from Colorado to Missouri . . . for work” in 2018 or 2019,[3] and in 2019 she spent more of her time in Missouri than in Colorado. (Id. at 114; id. at 162, Recorded Statement at 21:09-24:54, 26:25-27:03.) Ms. Olave did not travel to Colorado in 2020, in part because of the global coronavirus pandemic. (Id. at 162, Recorded Statement at 21:09-24:54, 26:25-27.)
On September 15, 2020, an electrical fire occurred at the Property. (Doc. # 5 at ¶ 8.) Ms. Olave was in Missouri when the fire occurred. (Doc. # 55-1 at 112-13.) As part of their investigation into the claim after the fire was reported, an American Family adjuster inspected the Property on October 2, 2020. (Id. at 136-43.) During this inspection, the adjuster photographed a “For Rent” sign in the garage and documented family photographs throughout the house which did not include Ms. Olave. (Id. at 142-43, 149-50.) In September 2020, Ms. Olave's public adjuster, Peter Ridulfo, represented that at the time of the fire there were 4 adults and 4 children living at the Property. (Id. at 194-95.) On November 4, 2020, American Family took a recorded statement of Ms. Olave with counsel present. (Id. at 162, Recorded Statement at 0:00-0:10.) During this statement, in addition to describing her travel back and forth between Colorado and Missouri as outlined above, Ms. Olave confirmed her Colorado driver's license had expired and her current license was issued by Missouri. (Id. at 2:20-3:38, 21:09-24:54, 26:25-27.)
On January 20, 2021, American Family issued a coverage position letter denying Ms. Olave's property damage claim because “the named insured, Perla Olave does not reside at the loss location.” (Doc. # 55-1 at 202-06.) In response to requests for an inventory and documentation of damaged personal property owned by Ms. Olave, Mr. Ridulfo, represented that “everything at the [Property] is the property of [Ms. Olave] apart from her brother's clothes.” (Id. at 199.) Ms. Olave consistently denied having purchase receipts but submitted an affidavit asserting she owned items listed in two previously submitted catalogs of personal property damaged in the fire. (Id. at 225, 229.) Finally, at an October 17, 2022, deposition, Mr. Hernandez-Olave testified that multiple items at the Property, including the office furniture, computer, exercise equipment, a television, and a dresser, belonged to him. (Id. at 122-25.)
Ms. Olave and Mr. Olave-Hernandez (collectively “Plaintiffs”), initiated this action against American Family in Colorado state court on September 27, 2021, alleging one count for each plaintiff of: (1) breach of contract, (2) common law bad faith breach of insurance contract, and (3) statutory unreasonable delay or denial of benefits pursuant to Colo. Rev. Stat. §§ 10-3-1115 and -1116. (Doc. # 5 at 6-11.) American Family removed the case to federal court on October 29, 2021. (Doc. # 1.) On November 19, 2021, American Family filed a single counterclaim, seeking a declaratory judgment that Ms. Olave “was a resident of Missouri on September 15, 2020, and not a resident of Colorado and thus, the [Property] does not meet the definition of Insured location or Residence premises under the policy.” (Doc. # 20 at 19.) Plaintiffs moved to dismiss American Family's counterclaim, but on August 11, 2022, the Court adopted and affirmed a Recommendation of United States Magistrate Judge and denied Plaintiffs' Motion to Dismiss. (Doc. # 44.)
On January 30, 2023, Defendant filed the instant Motion for Summary Judgment on all six of Plaintiffs' claims. (Doc. # 55.) Plaintiffs filed their Response (Doc. # 59), and Defendant followed with its Reply (Doc. # 60). The matter is now ripe for review.
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okla., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. See id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact and entitlement to judgment...
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